This is the second appearance of this case before this court. On the first trial the jury returned a verdict for the defendant, and op review by this court the verdict was set aside and a new trial granted on the general grounds. On the second trial the presiding judge directed a verdict for the plaintiff. The material facts of the case are' set out in the opinion heretofore rendered. Moss v. Sell, 8 Ga. App. 589 (70 S. E. 18). While there was no substantial difference in the evidence on the first trial and that on the second, in order to illustrate the questions now raised it is necessary to make a brief statement of the facts.
Moss & Co., at Athens, Georgia, 'bought from L. E. Sell at Mulberry, Georgia, 50 bales of cotton. Sell delivered the cotton to the Gainesville Midland Railroad Company and took therefrom a bill of lading. He endorsed this bill of lading, attached to it a draft for the price of the cotton as agreed on, and deposited the draft, with the bill of lading attached, in the Bank of Hoschton on the morning of October 27,- 1906, and the bank credited Sell with the amount of the draft. On the same day and while the cotton was still on the platform of the railroad crossing at Sell’s side-track, forty bales were consumed by fire. On the 29th of October Sell called Moss & Co. over long-distance telephone and informed them' of the burning of the cotton, and, according to Moss, stated that he would replace the burned cotton with new cotton and forward a new bill of lading. In compliance with this *855request Moss & Co., on the clay on which the request was made, paid the draft by giving a check for the amount on the Georgia National Bank, which check was paid on the next day, the 30th. On the previous trial the evidence was in some conflict as to whether Moss & Co. paid this draft on the 27th or the 29th of October. On the present trial the evidence indisputably showed that the draft was not paid by Moss & Co. until the 29th and subsequently to the time when they received the telephone message from Sell. Subsequently Sell refused to replace the cotton according to his promise, and also refused to repay the money which Moss & Co. had paid on his draft. The defense which Sell set up on both trials was: (1) that the title to the cotton at the time of the fire was in Moss & Co., as Moss & Co. had paid the draft before the fire occurred; (2) that Moss & Co.’s remedy was by suit against the railroad company, a common carrier; and (3) that Moss & Co. carried insurance which covered the cotton.
On the first trial this court held that the title to the cotton at the time of the fire was in Sell, because the evidence showed that Sell had taken from the carrier a bill of lading covering the cotton, to his own order, and attached it to the draft which he drew on Moss & Co., transmitting the draft and the bill of lading to the bank for collection, this being a declaration on the seller’s part that he did not part with the title to the cotton, but retained it until acceptance and payment of the draft; the court so holding in accordance with the well-settled doctrine announced in Erwin v. Harris, 87 Ga. 333 (13 S. E. 513), and citations. And we further held that under section 4126 of the Civil Code (1910), relating to the title to agricultural products, the cotton remained the property of Sell until paid for. The principal reason now assigned for another trial is that the brief of evidence in the former trial was “either deficient or erroneous,” and misled the court, and that the decision of this court was based upon a material mistake of fact; that this mistake was that the record stated that the bill of lading which Sell had taken for the cotton was to his (Sell’s) own order, when, instead of this being the fact, the bill of lading itself showed that it was not to his own order, but was made directly to B. L. Moss & Co., as consignees. It is contended that, this being true, it follows that when the cotton was burned* the title was out of Sell and in Moss & Co., and the loss should
*856fall on them, and not on the plaintiff. The bill of lading is as follows: “Gainesville Midland Railway Co., No. 85, Bill of Lading. Mulberry Station, October 27th, 1906. Keceived of L. F. Sell fifty bales of cotton marked, numbered, and weighed as below, consigned to K. L. Moss & Co., Athens, Georgia.” It will thus be seen that the letter of the bill of lading makes K. L. Moss & Co. the consignees absolutely, without any mention of order or assigns. Sell treated the bill of lading as made to his own order, for he took it to the bank, endorsed it, and attached to it a draft for the price of the cotton, and had the amount of the draft placed to his credit in the Bank of Hoschton. There could not have been any other purpose in doing this than to retain the title to the cotton until payment of the draft. There was no other reason why he should have endorsed the bill of lading. This is also manifest by his subsequent conduct; for when the cotton was consumed, he called Moss & Co. over the telephone and requested them to pay the draft, although the cotton had been burned. This conduct on the part of Sell is a clear recognition not only of his purpose, when he took the bill of lading, to retain the title to the cotton until payment of the draft, but a recognition by him that the title was in Mm at the time of the fire. But for Ms promise made to Moss & Co. to replace the cotton which had been consumed, it is certainly clear that Moss & Co. would not have paid the draft. He induced the payment of his draft by his promise to replace the cotton. We think that all these facts clearly show that Sell’s intention in shipping the cotton to Moss & Co. was to retain title thereto until payment of his draft. While the general rule is well settled that a delivery of property to a carrier is ’a delivery to the purchaser, yet it is equally clear that any contemporaneous declaration on the part of the seller of an intention to retain title to the property until it is paid for constitutes an exception to this general rule. We conclude, therefore, that under all these facts, clearly indicating an intention on the part of Sell to retain the title to the cotton until payment of his 'draft, there is no substantial difference between the facts proved <on the second trial and those appearing in the brief of evidence in the record when the case was first here for review, which stated that the bill of lading was to the order of Sell. If this is not true, we think § 4136 of the code, supra, is applicable to the facts *857of this case, and that under that statute the title to the cotton remained in Sell until payment for the cotton by Moss & Co.; and the draft was not paid until the 29th of October, and the cotton was consumed on the 27th. Butler v. Georgia & Alabama Ry., 119 Ga. 959 (47 S. E. 320).
We do not think it necessary to consider any of the other questions raised by this record. The same questions were made in the previous record, and the entire evidence was in substantial accord on both trials, and, as this court held on the first trial that the verdict then rendered for the defendant was without any evidence to support it, and was contrary to law, there was nothing for the trial judge to do in the present instance but to direct a verdict for the plaintiff:. Judgment affirmed.